1. The appellants have been convicted by the Presidency Magistrate under Section 143 of the Indian Penal Code of being members of an unlawful assembly, and have been sentenced each to pay a fine of Rs. 201. On behalf of the appellants the appeal has been argued by Mr. Branson and Mr. Binning but as the Government, though served with notice, has not elected to appear, we are without the advantage of argument in support of the learned Magistrate's judgment.
2. Regard being had to the defining Sections 141 and 142 of the Code, the question is whether the appellants are shown intentionally to have joined an assembly of five or more persons of whom the common object was by means of criminal force, or show of criminal force, to any person to enforce any right or supposed right.
3. The scene of the alleged offence is a piece of vacant ground behind the Khoja Shia mosque in Samuel Street. The title to this piece of land is in dispute between the trustees of the mosque who claim to have acquired it by purchase, and the accused's party, who claim that it is part of a Municipal passage open to the use of the public. The dispute, which has existed since 1884, was renewed some months ago, when the Municipal Inspector, Mr. Captain, visited the place and staked off a ten foot passage for the public. This was in accordance with a settlement which had been arrived at between the Fazandar and the Municipality in or about 1884. In Mr. Captain's view the provision of the ten foot passage secured all rights vested in the public, and a shed and a mortar mill belonging to the mosque were outside this passage upon land which the Inspector took to be the private property of the mosque. This decision was resented by the accused No, 1, whose house faces the passage, and on 24th November, he and his mother addressed to the Commissioner of Police the Solicitor's letter, Ext. 4, in which after setting out their claim to the use of the land staked off as the property of the mosque, they go on to say that they 'intend to have the said stakes and mortar mill removed, and it is apprehended that on their attempting to do so, they will be assaulted by roughs hired by the trustees and their friends.' On the same day a somewhat similar letter was adressed to the trustees of the mosque. On the 28th November, Police Inspector Stenson visited the place and after making inquiries warned the accused Nos. 1 and 2 and others interested to refrain from creating any disturbance and to resort to the Civil Court for the establishment of their professed claims. On the following morning the alleged offence was committed. According to the finding of the learned Magistrate the three appellants went to the place accompanied by a number of Pathans, forcibly removed all the stakes from the ground, demolished the shed, prevented the mortar mill being worked, unyoked the buffalo attached to it and removed the grinding stone and pivot of the mill, intimidating and overawing those who on behalf of the mosque protested against these acts of violence.
4. For the accused Nos. 2 and 3, Mr. Branson has suggested-not, I think, very earnestly that his clients did not come upon the scene till after the work of demolition had been completed, but upon this point the evidence seems to me such as to preclude any attempt at discriminating between the three accused.
5. This brings me to the substantial argument, urged on behalf of all three appellants, that the evidence falls short of establishing the Criminal offence charged, and discloses only a lawful abatement or removal of a nuisance. We have been referred to numerous decided cases illustrating the distinction relied upon, but it appears to me that the question is ultimately one of fact on which little direct assistance can be obtained from other cases decided on their own particular sets of facts. When once it is clearly ascertained what exactly the appellants and their companions did, there will, I think, be no difficulty in applying the law.
6. To begin with, it certainly cannot be said that the Magistrate was blind to the imperfections appearing in the prosecution evidence: on the contrary his description of it as full of exaggerations and contradictions' is, in my opinion, an over statement, for on a careful reading of this evidence I observe that the exaggerations and discrepancies by no means exceed what one would ordinarily expect from witnesses of this class in a case of this character. Then, again, the learned Magistrate, being unable to find that the appellants had made out their claim of public right, proceeds to assess the evidence on the assumption in their favour that this claim had been substantiated. I do not think that the accused were entitled to have this assumption made: the case should have been treated as being, what it unquestionably was, a case of a disputed claim of right. That the claim was honestly entertained may be freely conceded; but none the less it was, to the full know-: ledge of the accused, a disputed claim and not an admitted claim or an ascertained right. This distinction seems to me to have some importance with reference to Section 141, Clause 4, of the Penal Code, the plain object of which is to prevent the resort to force in vindication of supposed rights.
7. Turning to the actual evidence I find myself in entire agreement with the view taken in it by this experienced Magistrate. He sees significance in the facts that the day chosen by the appellants was a Sunday after the lapse of some considerable time since the occupation of the ground by the trustees, and that the persons selected to carry out the demolition were Pathans. Mr. Binning complains that the Magistrate was wrong in taking notice of what he calls the 'well-known fact' that Pathans are the instruments usually hired by contending parties who desire to perpetrate acts of violence by deputy. In my opinion the Magistrate was perfectly right : he was endeavouring to ascertain the intention of the appellants, and the engagement of Pathans, who had personally no sort of interest in that quarrel, was very valuable evidence upon this point. The records of our Criminal Courts supply overwhelming proof of the popularity of the device of hiring Pathans to intimidate opponents, a device which is fraught with the gravest dangers to the public peace. The Magistrate was not only entitled, bat was, I think, bound to take this fact into consideration; and, if authority be desired for this opinion, I would refer to what was said by Lord Alverstone in Wise v. Dunning (1902) 1 K.B. 167 : 71 L.J.K.B. 165 : 85 L.T. 721 : 50 W.R. 317 : 66 J.P. 212 : 20 Cox O.C. 121 'Magistrates', said his Lordship, 'are only doing their duty when they have regard to, and make themselves acquainted With, the character of the population amongst whom they have to administer justice'. In this case the meaning of the choice of Pathans, though it may have escaped the learned Counsel, did not apparently escape his client, who, as I read his statement, is particularly anxious to deny that the men whom he took with him to the land were Pathans. As to the matter of fact, it will be enough to say that it is clear on the evidence that five or six Pathans at least were taken. It was said that these Pathans were tenants of the accused No l's manager. Be it so: but that does not explain why for a piece of work which could have been done by a couple of Hindu coolies, the appellants waited until they could engage the services of Pathans.
8. [His Lordship then set forth the effect of the evidence after a brief discussion of the evidence].
9. If the above evidence is to be believed, and I can see no good reason why it should be disbelieved, the offence, of' which the accused have been convicted seems to me, for the reasons already given, to be clearly established against them.
10. As I have said, in prosecutions of this kind each case must be decided on its we facts, and it is not pretended that any reported decision went upon facts exactly resembling those with which we are now concerned. The case which appeared to counsel most to favour the appellants was Denonath Ghattctck v. Rajcoomar Singh 3 C. 573 and that, therefore, is the only case which calls for notice. A very brief statement will show how materially different were the facts there before the Court. I have indicated what the facts are here. What were the facts there? There was a dispute between A and B, joint owners of a parcel of land. A obtained from the Magistrate an invalid order for exclusive possession, B replied with a civil suit to establish his title to joint possession of the whole parcel and for a declaration that A was not entitled to erect any edifice on the land, and B obtained a decree in his favour on the 19th May, 1877.
11. On 8th October 1877, the servants of B, finding As servants putting up an erection in contempt of the Court's decree, pulled down the bamboo structure and thrust aside the) servants of A. It was held that the servants of B were merely exercising the right of a bating a private nuisance, and were not members of an unlawful assembly. I entirely agree that in that case the servants of B were entitled to be acquitted, but I am at a loss to understand what bearing their position has on the case of the present accused in the wholly different condition of facts which I have endeavoured to describe.
12. In my opinion, therefore, the Magistrate's decision was right, and this appeal should be dismissed.
Basil Scott, C.J.
13. I concur in the judgment which has just been delivered.